Jury Nullification in the Modern Era

One of the the many blogs and news outlets that inform PCR Consultants about what is going on in the world of federal criminal issues is The Federal Criminal Appeals Blog. This is a great source for good news, defendant wins, and circuit case law for whatever might interest a reader who is researching or going pro se in the federal system.1

Jury Nullification

A favorite topic amongst the pro se and community, and this consultant, is the idea of jury nullification. In essence, this is the idea that a jury may acquit a factually guilty defendant if it feels that the statute broken is a bad law or the available sentence(s) goes way overboard. This may be a slight oversimplification, but that’s the essence of the idea.

Take for instance teens that sext each other or document their private behavior.2 These two teens did just that, and were charged as adults for taking lewd pictures of minors (themselves). How can you be charged as an adult for making a decision while also being treated as a child in the same case under the same circumstances?!3

There are weird, strange, and wild stories from all around the country every day that create the same confusion. These rare and outlier cases are why jury nullification has been exercised throughout our nations history. However, this exercise has been eroded more recently because the government and judges just don’t like it. From Doug Linder:

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney’s request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.4

Back to Current Events

The Federal Criminal Appeals Blog has documented to instances over the last quarter that have addressed this issue in modern day federal criminal trials. An excerpt from their May 1, 2013 post entitled “Did The First Circuit Encourage Jury Nullification?” discusses U.S. v. Costello and gets started this way:

We have too many federal criminal laws – more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call – it may or may not be a crime.

For example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was “harboring” an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, “trust us.” “We,” the government continues, “have scarce resources and good judgment. We won’t prosecute anyone except for really bad people.”

Thankfully, Judge Posner wrote the opinion in Costello. Here’s an excerpt, highlighted by that article:

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government’s sweeping definition of “harboring.” But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend’s drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Five days later, another case prompted more discussion on this topic. The case of U.S. v. Courtney, a federal judge in New Mexico delves deep into the issue of jury nullification, agrees its important, then says he won’t allow the jury to be made aware of its possible use. Its a lengthy opinion, but any voracious readers out there are highly encouraged to give it a read.

You Didn’t Read it, Right?

The possibility of jury nullification is not allowed to be presented to federal juries. Because federal juries do not participate in the sentencing of defendants, possible sentences which flow from a guilty verdict cannot be given to them. Judges specifically instruct juries to disregard the possible ramifications of a guilty verdict and decide only on if a statute was broken. This flies in the face of the protections we should have5 against tyrannical laws.

Without the ability to nullify criminal cases by returning a verdict of “Not Guilty” for insane prosecutions (Aaron Swartz, anybody?), the ability of U.S. citizens to keep their government in check gets stripped even more than it already has been.

Is it any wonder why the few rights we have left to defend ourselves against a possible tyranny are defended so vigorously, and are so vigorously being attacked? I’m talking about YOU, second amendment. ((Noah Webster wrote: “Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”

  1. IMPORTANT!: PCR Consultants neither advocates or wishes anybody engage the federal criminal justice system on their own unless that is their wish. References to all legal blogs and ideas are for informational purposes, and we take no responsibility if a litigant/defendant uses the information contained in any references to get themselves pimp-slapped out of a federal courtroom for any such tomfoolery []
  2. Presumably without their parent’s knowledge or consent []
  3. Quick point, its legal in Florida for these teens to engage in these behaviors, but not document them. []
  4. http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html []
  5. in codified and common law []